Alex Salmond was yesterday cleared of breaching the ministerial code when he appeared to confirm the Scottish Government had specific legal advice about an independent Scotland’s entry to the European Union.
• SNP accused of misleading the public after Salmond claimed to have sought legal advice that was then found not to exist
• Former Whitehall mandarin Sir David Bell found Salmond had acted in full accordance with Ministerial code, whilst investigating five separate grounds of complaint by Labour MEP Catherine Stihler
An official investigation said the First Minister gave a muddled, incomplete and confused answer during a BBC interview but did not breach the code.
Mr Salmond welcomed the report, but opposition parties reacted angrily, with the Scottish Tory leader Ruth Davidson branding the inquiry a “sham process”.
Mr Salmond commissioned the inquiry by Sir David Bell following an outcry over an interview conducted by Andrew Neil last March. In it, the First Minister answered in the affirmative when asked if he had sought legal advice on EU entry.
But seven months later, Deputy First Minister Nicola Sturgeon revealed the SNP administration had only just commissioned specific advice on Scotland’s position in Europe in the event of independence. The SNP had said that entry to the EU would be automatic for Scotland.
The discrepancy was seized on by
Labour MEP Catherine Stihler, who called for an investigation into the First Minister’s comments.
Ministers had previously said they would not reveal whether any advice existed – as the rules demand – and the Scottish Government went to court to keep it secret after a Freedom of Information request by Ms Stihler. Mr Salmond’s TV interview appeared to breach this rule.
After Ms Stihler demanded an inquiry, Mr Salmond appointed former civil servant Sir David.
His report examined five grounds for complaint put forward by the MEP. It focused on sections of the ministerial code dealing with the disclosure of legal advice, the principle of openness and the importance of ministers giving accurate and truthful information to parliament and correcting errors as soon as possible.
The report did not examine an allegation from Ms Stihler that Mr Salmond had been guilty of “an abuse of power” for using the code as the basis to prevent the release of details of legal advice on EU membership.
In his report, Sir David said the code lacked clarity when it came to dealing with the disclosure of legal advice and the different forms of legal advice offered to the government. He recommended the code should be revised.
Sir David, now the principal of Reading University, examined Neil’s BBC’s interview, when Mr Salmond, asked if he had sought advice from Scottish law officers on an independent Scotland’s EU entry, began his answer with the words: “Yes … in terms of the debate…”
Mr Salmond later argued that his answer had been given in the context of legal advice “in general terms” and was referring to legal opinions that had previously been offered.
The First Minister maintained he had stuck to the position outlined in the ministerial code which forbids him from commenting on the existence or content of legal advice.
Mr Salmond also claimed he was explaining to Mr Neil the nature of “underpinning advice” from law officers, which arises from them seeing submissions to ministers.
Referring to Mr Salmond’s
answer, Sir David’s report said: “Responding as you did got you off on the wrong foot, so that your attempt afterwards to describe the (legal) underpinning process was somewhat muddled and incomplete and later became confused with references to the conventions protecting other forms of legal advice.
“In these circumstances, one can understand the reaction of Ms Stihler and others when subsequently they compared your comments with the Deputy First Minister’s statement on 23 October.”
Sir David also pointed out that Mr Salmond “did not answer the question directly” and failed to use the “well-established formula of neither confirming nor denying the existence of law officers’ advice”.
When Mr Salmond referred himself for investigation, he said Sir David, a former colleague of Scotland’s permanent secretary, Sir Peter Housden, would be joining the usual panel of investigators – the former lord advocates Dame Elish Angiolini and Lord Fraser of Carmyllie. It later emerged Dame Elish and Lord Fraser would not be taking part as they used to be law officers.
Mr Salmond used First Minister’s Questions to claim he had been “cleared yet again of nefarious charges that have been made by opposition parties in this chamber”.
However, those opposition parties were angered by his claim. Labour’s Paul Martin said: “The man handpicked by the First Minister to look into the EU legal advice debacle has concluded that, when asked whether he had legal advice, Alex Salmond, and I quote, ‘did not answer the question directly’.
“Worse than that, he said Alex Salmond’s answers were muddled, incomplete and confused. This report has concluded that the government’s position on the legal advice scandal ‘stretched credulity’. And these conclusions are in a report which the First Minister says clears him.”
Mr Martin went on: “Alex Salmond misses the point. The point isn’t whether he broke a ministerial code, which he writes, the point is did he mislead the people of Scotland when he said he had legal advice? He clearly did. Alex Salmond doesn’t answer questions directly. Rather than tell the truth, he employs muddle and confusion to try to mislead the people of Scotland.”
Ms Stihler said: “Alex Salmond has rewritten history on this one and Sir David appears to have fallen for it. Reading this report, it is difficult not conclude what we have said all along. Alex Salmond said he had legal advice on Scotland’s relationship with the EU when he hadn’t even sought it.”
Ms Davidson said: “This was a sham process to brush off legitimate questions about the First Minister’s conduct. Alex Salmond was caught out, and in response resorted to appointing the judge and jury for his own trial. Even then, two of the jurors walked away from having to give a verdict.”
Neil/Salmond – how the interview went
ANDREW NEIL: “Can we clarify whether an independent Scotland would have to reapply for membership of the EU?”
ALEX SALMOND: “Well, no we wouldn’t. We’d be a successor state, one of two successor states. Both of these successor states would have to negotiate, but they would do it within the context of the wider European Union.”
AN: “We’ve established that it is unprecedented, although you’re trying to give a guarantee. Have you sought advice from your own Scottish law officers in this matter?”
AS: “We have, yes, in terms of the [inaudible], and obviously…” [interruption]
AN: “… and what did they say?”
AS: “Well you could read that in the documents that we’ve put forward, which argue the position that we’d be successful.”
AN: “But what do they say?”
AS: “You know I can’t give you the legal advice, or reveal the legal advice of law officers. You know that Andrew.”
AN: “But this is about the future of Scotland.”
AS: “Yes, but what you can say is everything we’ve published is consistent with the legal advice that we received. Now the other point I was going to make to you – we can argue lawyer against lawyer…” [interruption]
AN:: “But I’m [inaudible] you if you’ve sought advice, and you tell me you won’t tell me the advice.”
AS: “Well, you know, Andrew, the only precedent I can think of in terms of the publication of legal advice from any government is the advice on the Iraq war, but every government, in regards to London or Edinburgh, will not publish legal advice.”